Harbilash vs State of U.P. and Another

Rakesh Tiwari, J.—Heard learned Counsel for the parties and perused the record.

The Petitioner has challenged the validity and correctness of the impugned order of termination dated 17.11.1999 by which his services have been dispensed with w.e.f. date of notice on the ground that his services were no longer required.

The backdrop of the case is that Petitioner was appointed on the temporary post of Constable vide order dated 12.11.1998. He was required to submit an affidavit mentioning therein as to whether any criminal case was pending against him. It appears that while filling of the form for selection, the Petitioner had concealed the fact that a criminal case against him u/s 323/34, 504/506 IPC and u/s 3(I) (X) of SC/ST Act was pending before IInd Additional District Judge, Mainpuri. After swearing of the affidavit he made interpolation incorporating the fact about pendency of the criminal case. Proceedings u/s 218 IPC were also initiated against him for making interpolation in the affidavit which are said to be still pending. Under the aforesaid circumstances, preliminary enquiry was held to verify the fact. The Petitioner was not found fit to serve on the post of constable in a disciplined force in view of his antecedents and act of interpolation in swearing affidavit, hence his services were terminated in exercise of powers under the U.P. Temporary Govt. Servant Rules framed under Article 309 of the Constitution of India.

The contention of learned Counsel for the Petitioner is in two folds. The first contention is that U.P. Temporary Government Servants (Termination of Service) Rules, 1975 do not apply to the police constables. In support of this contention he has relied upon judgments rendered by this Court in Writ Petition No. 40708 of 2007: Girijesh Kumar v. State of U.P. and Ors., by His Lordship Hon''ble Sudhir Agarwal, to the same effect upon judgment rendered by His Lordship in Writ Petition No. 54350 of 2007: Praveen Tyagi v. State. Besides the cases cited above, learned Counsel for the Petitioner has also relied upon a Full Bench decision in the case of Vijay Singh and Ors. v. State of U.P. and Ors. 2004 (4) ESC 2209 and also in the case of Subhash Chandra Sharma v. State of U.P. 2000 AWC (3) 2367 and in the case of Vijay Shanker Tripathi v. State Public Services Tribunal and Ors. Writ Petition No. 28767 of 1998 decided on 23.11.2005.

In the cases cited by the Petitioner, the Court held that learned Standing Counsel neither placed any authority not placed any thing to take deifferent view in the matter and consequently the impugned order was quashed directing that Petitioner would be entitled for all consequential benefits.

In the case of Praveen Tyagi v. State (Civil Writ Petition No. 54350 of 2007) upon which reliance has been placed by His Lordship in the case of Girijesh Kumar v. State of U.P. and Ors., in paragraph 11 it has been held thus:

The question as to whether the Rules framed under proviso to Article 309 of the Constitution will prevail or the Police Regulations, came up for consideration before the Apex Court in Chandra Prakash Tiwari and Others Vs. Shakuntala Shukla and Others, and the Apex Court while considering the above question in reference to U.P. Government Servants (Criterion for Recruitment by Promotion) Rules, 1991 framed under proviso to Article 309 qua Government Order dated 5.11.1965 issued u/s 2 of the Act, 1861 held that the Rules framed under proviso to Article 309 would not apply since the field is covered by the statutory order issued u/s 2 of the Act, 1861. It may be noticed that before the Apex Court not even a Rule framed under Act, 1861 was under consideration but only a Government Order 05.11.1965 was up for consideration and the question was whether such Government Order would prevail over the Rules framed under proviso to Article 309 and in that context, the Apex Court answered the question upholding the superiority of the statutory order issued under the provisions of Act, 1861 and decline to give superiority to Rules framed under proviso to Article 309 of the Constitution.

It has been specifically stated in paragraph (iii) of the counter affidavit that the Petitioner was appointed against temporary post and the services were terminated by order dated 17.11.1999. Assertion of fact that Petitioner was appointed against temporary post has not been specifically denied in the rejoinder affidavit. Learned Counsel for the Petitioner has justified his argument by stating that since appointment was made against substantive post, therefore, Regulation 541 of Police Regulation would apply and not the U.P. Temporary Government Servant Rules in the exercise of which services of the Petitioner were terminated.

The second point raised by learned Counsel for the Petitioner is that the matter stands concluded in view of judgment of the Apex Court in the case of Commr. of Police and Others Vs. Sandeep Kumar, wherein the Court held thus:

When the incident happened the Respondent must have been about 20 years of age. At that age young people often commit indiscretions, and such indiscretions can often been condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives. (para 13)

It is true that in the application form the Respondent did not mention that he was involved in a criminal case u/s 325/34 IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified. (para 19)

At any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter. (para 20)

He further submits that the Petitioner has been acquitted in criminal case pending against him u/s 323/34, 504/506 IPC and u/s 3(i) (x) of SC/ST Act. The judgment passed by II Addl. Sessions Judge, Mainpuri, in S.T. No. 395 of 1998: State v. Ram Bilas and Ors., has been appended as Annexure-1 to the writ petition. A perusal of the judgment, aforesaid, shows that Petitioner has been acquitted as witnesses had become hostile.

There is no dispute that proceedings u/s 218 IPC had been initiated against the Petitioner for interpolation in the affidavit filed by him regarding criminal case.

This writ petition had been filed by the Petitioner as far as back in the year 1999 in which order dated 2.12.1999 was passed directing the parties to exchange the counter and rejoinder affidavits. No interim order had been passed since 1999.

In view of the fact that no interim order had been granted since 1999, this Court is not inclined to grant interim order after 12 years. Interim application is, accordingly, rejected.

In the circumstances, in view of the judgment cited by learned Counsel for the Petitioner (supra), the petition is admitted and the petition is directed to be listed for hearing after four months.